Why should Section 377 go?

Repealing of Section 377 by the Supreme Court will mean victory for equality and dignity of the individual

A strange kind of football was being played between the Indian legislature and judiciary on Section 377 of Indian Penal Code(IPC). Section 377 outlaws relationship between same sex couples and carries a stiff penalty of imprisonment up to 10 years. Enacted by our colonial masters in 1862, it smacks of medieval prejudice which by any stretch or argument, is draconian in the present day context. The Supreme Court in December 2013 reversed a Delhi High Court verdict of 2009 decriminalising gay sex. The central government officially stated that it cannot intervene in this matter as it is sub-judice. An attempt by Congress MP Shashi Tharoor, to introduce the Bill in the parliament during the winter session in 2015 was scuttled without even being debated.

The Supreme Court on February 2, 2016 referred a batch of curative petitions against Section 377 to a five-judge Constitution Bench for in-depth hearing. In legal terms, a curative petition is the last resort for redressal of grievances. While referring the matter to a five-judge bench, the Chief Justice noted that the case involves questions with constitutional dimensions. There is a strong lawful argument to strike down Section 377. That right to privacy is a fundamental right. And a person’s sexuality is the most precious and private of rights.

In June 2015, the US Supreme Court ruled that the gay community was entitled to due process and equal protection in the matter of marriage thus legalising gay marriages. In fact, this was a hard won battle by the Lesbian, Gay, Bisexual, and Transgender (LGBT) activists. There are 21 countries in the world where same sex marriages are legal. England repealed this law in 2013. According to Lawyers Collective, Section 377 lacks precise definition. It has come to include all manner of “immoral” acts other than acts that are considered natural. This section violates articles 14, 15, 19, and 21 of the Indian constitution which guarantee equality, freedom of expression and personal liberty to all its citizens.

Although chances for success in a curative petition are very slim, this is the time for a serious introspection and honest evaluation by the apex court. Where does the honourable court stand on the issue of homosexuality? This is not a matter of judicial overreach. All that the Supreme Court should do is to enforce the fundamental rights of the citizens of India. For a liberal democracy, to criminalise sexual activity between consenting adults of the same sex is plain repressive which places it in the same league as some Middle Eastern countries.

Guru Aiyar is a research scholar at Takshashila Institution and tweets @guruaiyar

Featured Image: Law and Order by Paige, licensed from creativecommons.org

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This is a community blog by the public policy students, alumni, scholars and staff of the Takshashila Institution. The opinions are those of the respective authors and do not represent the position of the editors or that of the Takshashila Institution.